IN THE SUPREME COURT OF FLORIDA ROBIN LEE ARCHER,

Appellant, vs. FSC Case No. SC04-451

LT Case No. 1991 CF 000606A STATE OF FLORIDA,

Appellee. ___________________________/ ON APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT, IN AND FOR ESCAMBIA COUNTY, FLORIDA INITIAL BRIEF OF APPELLANT

SARA K. DYEHOUSE, ESQUIRE FLA. BAR NO. 0857238 3011 RICHVIEW PARK CIRCLE TALLAHASSEE, FL 32301 (850) 907-9559

ATTORNEY FOR APPELLANT

ii

TABLE OF CONTENTS TABLE OF CONTENTS .......................................... ii TABLE OF CITATIONS ........................................ iii PRELIMINARY STATEMENT ....................................... 1 STATEMENT OF THE CASE AND FACTS ............................. 2 SUMMARY OF ARGUMENT ........................................ 38 ARGUMENT ................................................... 40

ISSUE I................................................ 40

NEWLY DISCOVERED EVIDENCE BASED ON THE MATERIAL RECANTATION OF THE STATE’S KEY WITNESS ESTABLISHES ROBIN ARCHER’S FACTUAL INNOCENCE IN THE ROBBERY AND MURDER OF BILLY COKER.

ISSUE II............................................... 66

ARCHER WAS DENIED A FUNDAMENTALLY FAIR TRIAL WHEN THE STATE KNOWINGLY PRESENTED FALSE TESTIMONY THAT AFFECTED THE JURY’S VERDICTS.

ISSUE III.............................................. 87

ARCHER WAS DENIED A FUNDAMENTALLY FAIR TRIAL WHEN THE STATE WITHHELD MATERIAL, EXCULPATORY EVIDENCE THAT NOW PUTS THE WHOLE CASE IN SUCH A DIFFERENT LIGHT THAT IT UNDERMINES CONFIDENCE IN THE VERDICT.

CONCLUSION ................................................. 99 CERTIFICATE OF SERVICE ..................................... 99 CERTIFICATE OF FONT ....................................... 100

iii

TABLE OF CITATIONS UNITED STATES SUPREME COURT CASES PAGES Banks v. Dretke,

540 U.S. 668 (2004)................................ 88, 97 Berger v. United States,

295 U.S. 78 (1935)..................................... 75 Brady v. Maryland,

373 U.S. 83 (1963)............................. 88, 93, 94 Giglio v. United States,

405 U.S. 150 (1972)............................ 66, 76, 97 Jacobs v. Scott,

513 U.S. 1067 (1995)................................... 59 Kyles v. Whitley,

514 U.S. 419 (1995)................ 87, 88, 90, 95, 96, 97 Mooney v. Holohan,

294 U.S. 103 (1935).................................... 66 Napue v. Illinois,

360 U.S. 264 (1959)............................ 66, 72, 87 Strickler v. Greene,

527 U.S. 263 (1999).................................... 87 United States v. Agurs,

427 U.S. 97 (1976)................................. 66, 72 OTHER FEDERAL CASES PAGES United States v. Lyons,

352 F. Supp. 2d 1231 (M.D. Fla. 2004).................. 76 Westley v. Johnson,

83 F.3d 714 (5th Cir. 1996)............................ 72 STATE CASES PAGES Allen v. State,

iv

854 So. 2d 1255 (Fla. 2001)............................ 94 Archer v. State,

613 So. 2d 446 (Fla. 1993)................. 21, 64, 67, 83 Archer v. State,

673 So. 2d 17 (Fla. 1996).......................... 23, 65 Armstrong v. State,

642 So. 2d 730 (Fla. 1994)..................... 52, 63, 65 Bonifay v. State,

626 So. 2d 1310 (Fla. 1993)............................ 21 Bonifay v. State,

680 So. 2d 413 (Fla. 1996)............................. 23 Cardona v. State,

826 So. 2d 968 (Fla. 2002)............................. 98 Floyd v. State,

30 Fla. L. Weekly S192 (Fla. Mar. 24, 2005)........ 87, 98 Gorham v. State,

597 So. 2d 782 (Fla. 1992)............................. 90 Guzman v. State,

868 So. 2d 498 (Fla. 2003)......................... 66, 82 Hoffman v. State,

800 So. 2d 174 (Fla. 2001)......................... 94, 98 Johnson v. Singletary,

647 So. 2d 106 (Fla. 1994)............................. 57 Johnson v. State,

769 So. 2d 990 (Fla. 2000)..................... 53, 57, 71 Jones v. State,

709 So. 2d 512 (Fla. 1998).................................... 51 Lightbourne v. State,

841 So. 2d 431 (Fla. 2003).................................... 50 Mordenti v. State,

v

894 So. 2d 161 (Fla. 2004)................. 65, 86, 87, 98 Roberts v. State,

840 So. 2d 962 (Fla. 2002).................................... 51 Robinson v. State,

707 So. 2d 688 (Fla. 1998).................................... 51 Rogers v. State,

782 So. 2d 373 (Fla. 2001)............................. 98 Shere v. State,

579 So. 2d 86 (1991)................................... 76 State v. Gunsby,

670 So. 2d 920 (1996).................................. 96 State v. Huggins,

788 So. 2d 238 (Fla. 2001)............................. 98 State v. Spaziano,

692 So. 2d 174 (Fla. 1997)..................... 53, 57, 66 Torres-Arboleda v. Dugger,

636 So. 2d 1321 (Fla. 1994) ................................... 50 Trepal v. State,

846 So. 2d 405 (2003).................................. 72 Ventura v. State,

794 So. 2d 553 (Fla. 2001)......................... 66, 82

1

IN THE SUPREME COURT OF FLORIDA ROBIN LEE ARCHER,

Appellant,

vs. FSC Case No. SC04-451

L.T. Case No. 1991 CF 000606A STATE OF FLORIDA,

Appellee. ___________________________/ PRELIMINARY STATEMENT

Appellant, ROBIN LEE ARCHER, was the defendant in the trial

court below and will be referred to herein as “Appellant” or by

his proper name. Appellee, the State of Florida, was the

petitioner in the trial court below and will be referred to

herein as “the State." At Archer’s evidentiary hearing, the

trial court agreed to take judicial notice of the trial,

resentencing, and post-conviction records of Patrick Bonifay.

(PC-A VII 990-93). Thus, the following conventions will be used

to reference the various records in these cases:

Archer’s trial record -- (TR-A [vol. #] [page #]).

Bonifay’s trial record -- (TR-B [vol. #] [page #]).

Archer’s resentencing record -- (RS-A [vol. #] [page #]).

Bonifay’s resentencing record -- (RS-B [vol. #] [page #]).

Archer’s post-conviction record -- (PC-A [vol. #] [page #]).

2

Bonifay’s post-conviction record -- (PC-B [vol. #] [page

#]).

STATEMENT OF THE CASE AND FACTS

A. The crimes

On January 27, 1991, at 12:09 a.m., Deputy Carl Chapman of

the Escambia County Sheriff’s Office was dispatched to Trout

Auto Parts at 5590 North W Street in Pensacola. (TR-A I 103-

04). Deputy Chapman found the side door of the business ajar

and the clerk, Billy Coker, lying dead behind the counter. (TR-

A I 104). Crime scene technicians later found the front door to

the business securely locked. They also found evidence of a

robbery. (TR-A I 107-17). A security camera aimed at the front

counter and drive-up window recorded two masked individuals, one

of whom was Caucasian, enter the store through the drive-up

window, cut the locks on the night deposit box, and leave four

minutes later. (TR-A II 247-50). It did not record the

shooting of the clerk, however, because the security equipment

intermittently switched to a second camera in the warehouse.

(TR-A II 249). An autopsy of the victim revealed four gunshot

wounds: two to the left side of the head, one to the back below

the scapula, and one to the chest. (TR-A II 231-32).

B. The investigation

3

A few days after the robbery/murder, Escambia County

Sheriff’s Investigator Thomas O’Neal focused on Kelly Bland as a

suspect. (PCR-A VIII 1167). Investigator O’Neal testified at

Archer’s post-conviction evidentiary hearing that Bland was

given use immunity by the State Attorney’s Office in exchange

for information about the Trout case. (PCR-A VIII 1167-68). In

a statement recorded by O’Neal, Bland admitted supplying

Patrick Bonifay with the gun used to kill Billy Coker. (PCR-A

VIII 1167-68). Bland also admitted to committing a burglary,

along with Bonifay, Clifford Barth, Eric White, and George Wynn,

four weeks prior to the Trout robbery/murder, at a business

called All Pro Sound, which was 1.5 miles from the Trout Auto

Parts store. (PCR-A VII 1136-39; VIII 1167-68).

While in jail on the Trout case, Patrick Bonifay, who was 17

years old at the time, also gave a recorded statement regarding

the All Pro Sound case, wherein he revealed that Wynn waited in

Barth’s truck at the back door to the business while Bonifay,

White, and Bland broke the glass in the front door, entered the

business, and stole $17,730 worth of equipment. Bonifay’s step-

father, who worked at the business, had given Bonifay the alarm

code to facilitate the burglary. (PCR-A VIII 1143-44).

Bonifay, Barth, White, and Wynn, but not Bland, were all

4

arrested and charged with the All Pro Sound burglary and grand

theft. (PCR-A VIII 1141).

Bonifay was convicted and sentenced in the All Pro Sound

case on the day of his Spencer hearing in the Trout case, well

after his testimony in Archer’s trial. (PCR-A VIII 1164).

Barth pled no contest on June 11, 1991, prior to his testimony

in Archer’s trial. (PCR-A VIII 1165). Wynn’s prosecution was

deferred by agreement until October 9, 1992, well after his

testimony in Archer’s trial. (PCR-A VIII 1164).

Archer’s prosecutor, Michael Patterson, who also prosecuted

Bonifay, Barth, and Fordham in the Trout case, could not recall

at Archer’s evidentiary hearing whether he knew about these

witnesses’ involvement in the All Pro Sound case and, if so,

whether he provided such information to Archer’s trial attorney.

(PCR-A VII 1103-05, 1108, 1112). Likewise, Investigator

Sanderson could not recall providing his reports in the All Pro

Sound case to the State Attorney’s Office, nor could

Investigator O’Neal recall telling the prosecution about the All

Pro Sound case, since, in his opinion, there was nothing in

Bland’s statement relevant to the Trout case. (PCR-A VIII 1163,

1170, 1172). As a result, Archer’s trial counsel, Brian Lang,

was unaware of these witnesses’ involvement in this burglary, or

5

their pending or resolved prosecutions, at the time they

testified against Archer in the Trout case.1 (PCR-A VII 1030).

1 Similarly, Mr. Lang could not recall at Archer’s

evidentiary hearing whether he was aware of Bonifay’s prior arrest and pending prosecution for a burglary and aggravated battery in Mississippi. (PCR-A VII 1037). The prosecutor also could not recall whether he investigated the Mississippi case and obtained records in relation thereto. (PCR-A VII 1092). However, he used the Mississippi arrest to impeach Bonifay in his penalty phase, which occurred immediately after Archer’s guilt phase, to show that Bonifay was capable of committing crimes without Archer’s involvement. (PCR-A VII 1092-93; TR-B III 432-34).

Patrick Bonifay also confessed his involvement in the Trout

robbery/murder to the police. In the recorded version of his

statement, Bonifay alleged that Archer wanted him to “do a hit

on a person.” (TR-B II 231). Specifically, Archer wanted him

to kill the clerk who was working at Trout on Friday night

because the clerk had gotten Archer fired. According to

Bonifay, Archer first told him to ask the clerk for a clutch for

a 1985 Nissan, so the clerk would have to go into the warehouse

to get the part. Meanwhile, Bonifay was supposed to crawl

6

through the drive-thru window and when the clerk returned he was

supposed to “shoot the clerk in the head.” Bonifay could then

cut the locks off the night deposit box, steal the money to make

it look like a robbery, and exit through the back door where

someone would be waiting with a car. After providing this

information, however, Archer “changed his mind” and told Bonifay

to “walk up there and shoot him and kill him.” (TA-B II 231-

33).

Based on this alleged “plan,” Bonifay enlisted the aid of

Eddie Fordham and Cliff Barth, all of whom went to the Trout

store on Friday night in Fordham’s Mustang. Once at the store,

Bonifay walked up to the drive-through window, but “couldn’t do

it,” so they left. The next morning, Archer allegedly berated

Bonifay for backing out. Archer told Bonifay that the clerk

would be there that night and that Bonifay should go back and do

the job. In exchange, Bonifay was expecting “a lot of money.

Enough money to where [he] wouldn’t have to worry about anything

else anymore.” (TA-B II 234-35).

As directed, Bonifay, Barth, and Fordham went back to the

Trout store on Saturday night around 11:45 p.m. in Fordham’s

father’s S-10 Blazer. Bonifay walked up to the window, but the

clerk saw him before he could put on his ski mask, so Bonifay

pulled out the gun he had gotten from Kelly Bland and aimed it

7

at the clerk, who had turned to answer the phone. At that

point, Barth grabbed Bonifay’s shoulder, and the gun “went off.”

The clerk fell, and Barth yelled, “You didn’t kill him. You

didn’t kill him.” According to Bonifay, Barth then grabbed the

gun and shot the clerk once.2 (TR-B II 235-36).

2 Barth has consistently denied shooting the clerk. (TR-B

II 285; TR-A II 207-08).

After donning ski masks, Bonifay and Barth crawled through

the window. The clerk was talking about his kids. Barth was

not strong enough to cut the locks off the night deposit box, so

Bonifay handed Barth the gun and cut the locks off with a pair

of bolt cutters Bonifay had gotten from Kelly Bland. Then

Bonifay took the gun back and started to leave when Barth said,

“Patrick, kill him.” Because the clerk had seen his face and

now knew his name, Bonifay decided that he had to kill the

clerk, so he shot him twice in the head, and he and Barth left

through the back door as planned. In the car, Bonifay stuck his

gun in Barth’s face, angry that Barth had said his name and

forced him to kill the clerk. (TA-B II 236-37).

From the store, the three drove to an undescribed location

and counted the money. Bonifay and Barth each received $700,

while Fordham received $663. On the way to take Barth home,

8

they threw the checks in a ditch full of water. Bonifay and

Fordham then drove to Fordham’s home and went to sleep. Bonifay

later gave the gun back to Bland and told him to get rid of it

because he had used it in the robbery/murder at Trout. Archer

came over to Bonifay’s a few days later, laughing because

Bonifay had killed the wrong clerk. Archer refused to pay him

any money because of it. Bonifay was going to “jump on him,”

but decided not to “because of what might happen.” At the end

of his recorded statement, Bonifay asked Investigator O’Neal to

“make sure [his] family [was] protected . . . and [his]

girlfriend,” implying that he was afraid of Archer. (TR-B II

238, 241-42, 244).

Archer was immediately arrested, but gave no statement to

the police. On February 26, 1991, he was indicted, along with

Bonifay, Barth, and Fordham, for the murder and armed robbery of

Billy Coker, and the grand theft of the money from the Trout

store.3 (TR-A IV 489-90).

3 On August 28, 1991, Larry Fordham was convicted by a jury

of first-degree murder, armed robbery, and grand theft. He was

9

C. The trials

later sentenced to life imprisonment, a concurrent 75 years in prison, and a concurrent five years in prison. (PC-A VII 1000-01). On August 29, 1991, Clifford Barth pled guilty to his involvement in the robbery/murder in exchange for the State not seeking the death penalty, and he later received a life sentence. (PC-A VII 980, 983).

10

In mid-July 1991, two juries were selected from the same

venire, one for Bonifay’s trial, which was to be held first, and

one for Archer’s, which was to immediately follow Bonifay’s.

(TR-A Supp. 582-670; I 19-64). At Bonifay’s ensuing trial, the

State’s theory was that Bonifay devised a plan to rob Trout Auto

Parts. Archer assisted in the planning, which included the

death of the clerk, because Archer harbored animosity against

Dan Wells, whom he thought contributed to his firing from Trout

10 months prior.4 (TR-B I 123-32). To support its theory of

prosecution, the State offered the following testimony: (1) Dan

Wells, the clerk on duty at Trout on Friday night, related an

unnerving encounter with a customer just prior to closing time.

(TR-B I 185-90). He also testified that there was “ill-will”

between himself and Archer.5 (TR-B I 192); (2) Jennifer Morris

Tatum, who was Kelly Bland’s girlfriend, testified that Bonifay

4 Bonifay’s defense, on the other hand, was that he was

merely carrying out the instructions of Archer. Archer was older, had significant influence over Bonifay, and had threatened Bonifay’s family if he did not go through with the plan. In closing argument, Bonifay’s attorney likened Archer to Saddam Hussein (America was in the midst of the Persian Gulf War) and alleged that Archer “sent these kids out to fight the war with threats[:] if you don’t go out and kill these faceless Americans your family is in jeopardy.” (TR-B 133-35, 330-31).

5 Wells believed that he was instrumental in getting Archer fired from Trout. (TR-B I 194). However, Timothy Eaton, Trout’s general manager, testified that Dan Wells was not involved in the firing of Archer. (TR-B I 184).

11

came by several days prior to the robbery/murder asking Bland

where the gun was. Bonifay later confessed to her his

involvement in the robbery/murder.6 (TR-B II 200-03); (3) Kelly

Bland testified that Bonifay asked him for a gun to “go shoot

it.” Bland took a gun by Bonifay’s house, but Bonifay was not

home, so Bland gave it to Archer to give to Bonifay. Bonifay

returned the gun to him after the robbery/murder and told Bland

to get rid of it and why. (TR-B II 208-13); (4) Investigator

O’Neal played Bonifay’s taped statement for the jury. (TR-B II

231-44); and (5) Clifford Barth testified that Bonifay called

him on the Thursday prior to the crime and said he wanted to rob

the Trout store, that they could get as much as $20,000. The

plan was to get the clerk to go into the back room, then they

would go inside and Bonifay would hold the gun on the clerk

while Barth got the money.7 According to Barth, they were not

going to shoot the clerk unless they had to. Barth then

described both their aborted attempt on Friday night and their

commission of the crime on Saturday night. (TR-B II 266-80).

6 Bonifay told Tatum that they went there to rob the store,

but the clerk saw his face and they had to kill him. (TR-B II 203).

7 According to Barth, Bonifay never attributed the plan to Archer. Rather, Bonifay said that Archer told him where everything was in the store, but Bonifay “didn’t say that [Archer] set it up or nothing.” (TR-B II 285).

12

In his closing argument to Bonifay’s jury, the prosecutor

asserted that “[t]he threats against Mr. Bonifay . . . is [sic]

a story that this man made up, one of many stories this man made

up in an effort to avoid responsibility for what he knew he

did.” (TR-B II 337). Patterson further argued that “Mr.

Bonifay planned to rob Trout Auto Parts. He enlisted the help

of Mr. Barth. He enlisted the help of Mr. Fordham. He did it

with the help and aid of Mr. Archer. . . . You should convict

the defendant now based on the evidence that . . . establishes

beyond any possible doubt . . . that he intentionally killed Mr.

Coker, that he robbed Trout Auto Parts and that he stole the

money.” (TR-B II 342-43, 344).

Within hours of the State’s closing argument in Bonifay’s

case, Archer’s trial began.8 Naturally, the State’s focus

shifted to make Archer at least an equally, if not more,

culpable co-defendant.9 Thus, his theory, as presented to the

jury, was that Archer was a principal in the robbery/murder:

Archer and Bonifay planned it together, there was ill-will

8 The judge sealed the verdicts rendered by Bonifay’s jury

so as not to prejudice Archer’s jury. (TR-B II 373-76). Thus, none of the parties knew whether the jury had found Bonifay guilty.

9 Patterson admittedly wanted to establish the CCP aggravating factor, which required proof of heightened premeditation. (PCR-A VII 1075).

13

between Archer and Dan Wells, the intended victim, and Archer’s

benefit in participating was “revenge.” (TR-A I 83-84).

To support this theory, the prosecutor called Patrick

Bonifay as a witness. For the first time, Bonifay testified

that Archer came to his house the Thursday before the

robbery/murder and showed him a “briefcase full of money.”10

Archer told Bonifay he wanted him to “do a job,” i.e., murder

the clerk working at Trout on Friday night. (TR-A I 126).

Archer wanted the clerk killed because, according to Bonifay,

“[t]he man got him fired and messed up something, and [Archer]

had hated him ever since.” (TR-A I 129). In order to make it

look like a robbery, instead of a murder, Archer allegedly told

Bonifay to ask the clerk for a Nissan clutch assembly so he

would have to go into the warehouse to get it. Bonifay could

then climb in the drive-thru window, unlock the front door to

let in his accomplice, and shoot the clerk when he returned.

Archer warned him that the store had security cameras. (TR-A I

126-28).

10 Bonifay claimed that he had told Investigator O’Neal

about the briefcase of money; it was simply not on the taped version of his statement. (TR-A I 144). Investigator O’Neal denied that Bonifay ever mentioned it. (TR-A II 251).

14

Bonifay testified that he had been in the Trout store once

or twice before, but did not know where they kept their money.

Nor did he know that the other Trout stores in town deposited

their daily proceeds in a locked box on the wall of the W Street

store.11 (TR-A I 128). Bonifay also testified that he asked

Kelly Bland to find him a handgun, which Kelly did and gave to

Archer, who in turn gave it to Bonifay.12 (TR-A I 128).

Regarding the aborted attempt to rob the store on Friday

night, Bonifay’s testimony mirrored his pre-trial statement to

the police. (TR-A I 129). Bonifay likewise testified that when

Archer came to Bonifay’s house on Saturday, Archer began yelling

at him for backing out. He then testified, admittedly for the

first time, that he told Archer he would not kill for money, at

11 Both Robin Archer and his cousin, Richard, testified that

they were at another Trout location with Bonifay when Bonifay asked what the locked, green box was on the wall. Robin and Richard told Bonifay that the stores deposit their proceeds in these boxes overnight. (TR-A II 354-55). Rodney Archer, who worked at the W Street Trout store in 1990, also testified that the function of the green box on the wall was no secret. Customers asked about it all the time. (TR-A II 268-69, 348).

12 Bland did not testify at Archer’s trial. Moreover, Investigator O’Neal testified that Bland did not mention in his taped statement that he gave the gun to Archer. (TR-A II 222). Nor did Clifford Barth mention in his taped statement that they got the gun from Archer. (TR-A II 253). However, Barth testified at Archer’s trial that on Friday night he and Bonifay and Fordham drove to where Archer was staying. Archer came outside, and he and Bonifay went to Archer’s truck. Bonifay returned with a gun. (TR-A II 204).

15

which point Archer threatened the lives of Bonifay’s mother and

girlfriend if he did not complete the job. (TR-A I 130, 162).

Allegedly because of the threat, Bonifay called Barth and

Fordham, and the three returned to the Trout store on Saturday

night. Bonifay’s testimony regarding the robbery and murder

essentially mirrored his pre-trial statement to the police.

(TR-A I 130-35). On cross-examination, however, Bonifay

insisted that he did not want to kill the clerk, even though

that was his alleged purpose for being there. He did so, he

said, because he was afraid of Archer--his “gun, his

associates”--particularly after Archer had threatened his

family. (TR-A I 146, 148, 149, 154, 163).

Archer’s attorney cross-examined Bonifay about the briefcase

full of money, which Bonifay described as a briefcase of $50

bills, totaling $500,000. Bonifay conceded, however, that

Archer had not worked in almost a year, that his girlfriend was

supporting him, and that he was staying with different people

because he had no money for an apartment.13 (TR-A I 137-40).

13 On redirect, the prosecutor was allowed to elicit over

objection that Bonifay believed Archer had another source of

16

income sufficient to generate a significant amount of cash. (TR-A I 166). The inference was clear that Archer sold marijuana to support himself, and thus had money to pay Bonifay to kill the clerk at Trout.

17

Following Bonifay’s testimony, the General Manager for Trout

Auto Parts testified that he fired Archer in March 1990 and that

Dan Wells, who was Archer’s alleged intended victim, had nothing

to do with getting him fired. (TR-A I 174-75). Wells, who was

the clerk on duty at Trout on Friday night, testified that he

felt somewhat responsible for getting Archer fired from Trout,

and that although Archer had never threatened him, he felt

threatened by Archer. (TR-A I 182-85).

George Wynn testified that Bonifay called him on Friday

night and asked him to drive them to Trout, so they could rob

the store. Bonifay told him that “it might involve killing

somebody.” Bonifay also said that Archer “asked him to do that

and he wanted one person killed” because “he had problems with

him at work.” Bonifay claimed that Archer had told him that

there would be one person in the store, the doors would be

locked, and they would have to go in through the window. Wynn

declined to be the getaway driver and tried to talk Bonifay out

of it. (TR-A I 192-93). On Sunday, Bonifay called and

described the robbery/murder in detail. He did not say that

Barth shot the clerk, nor did he ever mention the $500,000 that

Archer had offered him. (TR-A I 194-96).

Next, Clifford Barth, who was 17 years old at the time of

the crime, testified that Bonifay called him on Thursday and

18

asked him to help rob the Trout Auto Parts store on W Street.

Bonifay never told him the reason they were going was to shoot

the clerk. Rather, Bonifay told him that Archer used to work

for Trout and had told him where Trout kept the money that the

other stores deposit there. Barth then recounted their trip to

see Wynn, their trip to obtain a gun from Archer, and their

aborted attempt to rob the store on Friday night. On Saturday,

Bonifay called Barth again and said he wanted do it that night,

“because Archer said it would be a good day to do it.” Barth

recounted the details of the robbery and murder, but denied ever

shooting the clerk. (TR-A 202-11).

Daniel Webber was the State’s next witness. Webber was the

roommate of Archer’s cousin, Rick. Archer had been staying with

Webber and Rick for several weeks when the robbery/murder

occurred, because Archer did not have anywhere else to stay. On

the Sunday following the crime, Webber came home and found

Archer asleep on the couch. When a news report about the

robbery/murder came on the television, Archer woke up and asked

Webber about it. Archer said he thought he knew who had

committed it, that he had told them how to do it. Archer

detailed the information he gave the unidentified perpetrators.

(TR-A II 212-15).

19

In his own defense, Robin Archer testified that Timothy

Eaton had fired him from Trout for “[p]oor work performance.”

He believed that he and Dan Wells had gotten along well, and he

had no indication that Wells was involved in his firing. (TR-A

II 261-64). He also got along well with Bonifay’s mother and

stepfather, with whom he stayed for several days in January

1991. He hardly knew Bonifay’s girlfriend, Rachel, and denied

threatening to harm either Bonifay’s mother or his girlfriend.

(TR-A II 275-76). Archer also denied offering Bonifay any money

to kill Dan Wells. Archer had no job, was being supported by

his girlfriend, who worked at Popeye’s, and had no access to

$500,000.14 (TR-A II 277-78, 290). He further denied accepting

a gun from Kelly Bland and giving it to Bonifay. (TR-A II 303).

As for his comments to Daniel Webber, Archer admitted telling

Webber that he thought he knew who robbed the Trout store and

how someone could do it, but he denied that he told anyone to

rob the store. (TR-A II 286-88, 300). He was not sure why

Bonifay would implicate him in the crime, except that Bonifay

had threatened to “get even” for Archer’s refusal to take him to

14 Archer’s girlfriend, Patricia Gibbs, confirmed that she

supported Archer financially, because he had no money and no job. (TR-A II 311-13).

20

buy a pound of marijuana several days before the

robbery/murder.15 (TR-A II 290-92).

15 Archer’s girlfriend testified that she overheard Bonifay

threaten to “get even” with Archer for Archer’s refusal to take him to buy drugs. (TR-A II 322).

In his closing argument to Archer’s jury, the prosecutor

stressed the law on principals and described the robbery/murder

as a “classic inside job.” (TR-A II 366-68). He then alleged

that Archer knew Bonifay was going to rob the store and kill the

clerk, that his benefit was revenge in seeing the store robbed

and the clerk killed, and that Archer helped Bonifay commit the

crime by offering him money to “pull it off,” by giving Bonifay

details about the store layout and security to facilitate the

robbery/murder, and by providing Bonifay with a gun. (TR-A II

369-78). “Patrick Bonifay was a loaded gun . . . pointed at

Trout Auto Parts, and that loaded gun killed Billy Coker because

of Robin Archer. That’s why Billy Coker is dead.” (TR-A 374).

The jury’s verdicts, rendered after two-and-a-half hours of

deliberation, were sealed until the following day. (TR-A III

433-36). The next morning, Bonifay’s verdicts were published in

open court, followed immediately by Archer’s verdicts. Both

Bonifay and Archer were found guilty as charged of first-degree

21

premeditated and/or felony murder, armed robbery, and grand

theft. (TR-B II 378-80; TR-A III 437-39). Immediately

thereafter, Bonifay’s penalty phase began.

D. The penalty phases and final sentencings

The State presented no additional evidence at Bonifay’s

penalty phase. On his own behalf, Bonifay presented the

testimony of his mother and a mental health counselor at the

jail. Bonifay also testified on his own behalf, telling his

jury, for the first time, about Archer hiring him to “hurt this

man.” (PC-B III 418). Bonifay claimed that Archer was a drug

dealer and that he was afraid of Archer and his “associates.”

(PC-B III 419-20). Bonifay was supposed to go to Trout on

Friday night “to do it for the money and [he] didn’t, so

[Archer] got mad.” (PC-B III 420). Archer had offered him “[a]

bunch of money in a briefcase. He said $500,000.” But Bonifay

did not complete the job, so Archer “got mad and he told me he

was going to kill my mom and my girlfriend if I didn’t do it.”

(PC-B III 420). When asked if he knew why Archer wanted the

clerk dead, Bonifay proposed, for the first time, his “idea”:

It was a bunch of dealers working at

Trout and they were all laundering their

money through the business, and Robbie

didn’t get along with one of them. So one

22

of them got him fired and he had no way to

prove his income. So he hated the guy and

he messed up the whole operation and stuff.

(TR-B III 422). Archer had never told Bonifay about the money

laundering; Bonifay just “knew that.” (TR-B III 427-28).

In closing argument to Bonifay’s jury, the State urged the

jury to find that Bonifay had committed the murder during the

course of a robbery, for pecuniary gain, in a cold, calculated

and premeditated manner, and in a heinous, atrocious, or cruel

manner. (TR-B III 465-68). Bonifay’s attorney, on the other

hand, urged the jury to find in mitigation that Bonifay had

acted under the substantial domination of Archer, that he had

acted under the influence of an extreme mental or emotional

disturbance, that his capacity to appreciate the criminality of

his conduct or to conform his conduct to the requirements of law

was substantially impaired, that he was only 17 years old when

he committed the crime, that he had cooperated with the police,

that he was remorseful, that he had been physically and sexually

abused as a child, and that he could be rehabilitated. (TR-B

III 468-75). The jury recommended death by a vote of ten to

two. (TR-B III 481).

Immediately thereafter, Archer’s penalty phase began. The

State called Cliff Barth to remind the jury of the events

23

following their entry into Trout Auto Parts on Saturday night,

which culminated in Bonifay shooting Billy Coker to death. (TR-

A III 454-56). In mitigation, the defense called Archer’s

girlfriend, Patricia Gibbs, and his mother, Frances Archer.

(TR-A III 456-61, 461-66). In closing arguments, the State

urged the jury to find in aggravation that the murder occurred

during the commission of a robbery, and that it was committed in

a cold, calculated and premeditated manner, as well as in a

heinous, atrocious, or cruel manner. (TR-A III 466-69). The

defense urged in mitigation that Archer had no significant

history of prior criminal activity, that he was an accomplice to

a murder and that his participation was relatively minor, that

he was acting under the influence of an extreme mental or

emotional disturbance, that his capacity to appreciate the

criminality of his conduct was substantially impaired, and that

he was only 26 years old at the time of the crime. (TR-A III

469-77). The jury recommended death by a vote of seven to five.

(TR-A III 484).

In sentencing Bonifay to death, Judge Lacey Collier found

the four aggravating factors proposed by the State. In

mitigation, he considered only Bonifay’s age at the time of the

crime, but concluded that Bonifay was “mentally and emotionally

mature.” (TR-B V 625). As nonstatutory mitigation, the court

24

found that Bonifay had had an unhappy childhood and that he had

demonstrated good attitude and conduct while incarcerated before

trial, to which it gave little weight. (TR-B V 625). In

rejecting the “substantial domination” mitigator, the court

stated:

The only evidence suggesting mental pressure is the self-serving assertions of defendant who offers that he was acting under some vague and veiled threat to the safety of his family and girl friend. No other witnesses nor one shred of other evidence was heard or seen that even remotely indicated duress. He also had ample opportunity to get away from the alleged threat if he had wanted to do so. As described, his actions in setting up the robbery and murder demonstrated a cool, confident person, individually dedicated to the task at hand. His demeanor at trial indicated to this Court that he is not one to be threatened.

(TR-B V 624).

In sentencing Archer to death, Judge Collier found the three

aggravating factors proposed by the State. In mitigation, it

found that Archer had no significant history of prior criminal

activity and that he was a loving son to his parents and a good

family member and friend. The court assigned no particular

weight to any of these factors. (TR-A IV 543-49).

E. The appeals

Archer raised four issues on appeal: (1) the trial court

erred in denying his motion for judgment of acquittal because

25

the murder of Billy Coker was an act independent of the agreed

upon plan to kill Daniel Wells; (2) the court erred in

instructing upon and finding the existence of the HAC

aggravating factor; (3) the court erred in instructing upon and

finding the existence of the CCP aggravating factor; and (4) the

court erred in converting several of the statutory mitigating

factors into nonstatutory aggravating factors. (FSC case no.

78,701; initial brief of appellant). This Court found the first

issue unpreserved and, alternatively, without merit. Archer v.

State, 613 So. 2d 446, 447-48 (Fla. 1993). It vacated Archer’s

sentence, however, because the trial court erred in instructing

the jury on the HAC aggravating factor, since it could not be

applied to Archer vicariously. Id. at 448. Bonifay’s sentence

was later vacated, as well, because the facts did not support

the HAC aggravating factor. Bonifay v. State, 626 So. 2d 1310

(Fla. 1993).

F. The resentencings

At Archer’s resentencing, Bonifay refused to testify,

asserting his Fifth Amendment privilege, so the State read his

previous testimony into evidence. (RS-A II 304-05, 330-80).

The jury again recommended death by a vote of seven to five, and

the trial court followed the jury’s recommendation, finding the

felony murder and CCP aggravating factors. (RS-A I 89, 140-42).

26

In mitigation, it found that Archer had no significant history

of prior criminal activity, to which it gave “significant

weight,” and that Archer had been a good family member to his

grandmother, to which the court gave “some weight.” (RS-A I

142-44).

Bonifay chose not to testify in his own behalf at his

resentencing. The jury again recommended a sentence of death by

a vote of ten to two, and the trial court followed that

recommendation, finding in aggravation that Bonifay committed

the murder during a robbery and for pecuniary gain and in a

cold, calculated, and premeditated manner. (RS-B I 40, 104-06).

In rejecting the “substantial domination” mitigating factor,

the trial court stated:

The evidence that Bonifay acted in response to the threats of Robin Archer comes primarily from the self-serving statements of the defendant. Certainly, Robin Archer concocted the scheme with revenge in mind, and he procured the defendant to carry it out. However, Bonifay admits he was willing to kill this man for whatever money was in the suitcase. He got Barth and Fordham involved; he got the gun, the ski masks, the bullets, the bolt cutters; and he told the others where to park the car, how to gain entry, where the cash boxes were located, and how to exit the store.

Bonifay testified that when Archer

learned he had not carried out the plan the first night, Archer became angry and told him he was going to kill Bonifay’s mom and

27

girlfriend if he did not do it. Upon further questioning, he testified that Archer actually said, “Do you like your mom and Ray?” When Bonifay asked what he meant, Archer said “to take it like you want to.” Bonifay says he interpreted this to mean that he was going to have them killed.

However, no such threat was present the

first night when Bonifay recruited Fordham and Barth and gathered the tools needed to carry out the plan. His actions in preparing for and carrying out the murderous scheme reflect a clear, cool, and crafty mind, singularly dedicated to the diabolical plan. No credible evidence exists to support his claim that he fired four lethal shots into the body of Billy Wayne Coker in response to the substantial domination of Robin Archer.

(RS-B I 107-08).

G. The resentencing appeals

In a four-to-three decision, this Court affirmed Archer’s

sentence of death, despite an unconstitutionally vague CCP

instruction, finding that each element of the aggravator existed

under any definition of the terms. Archer v. State, 673 So. 2d

17, 19-20 (Fla. 1996). In a unanimous decision, this Court

affirmed Bonifay’s sentence of death, as well. Bonifay v.

State, 680 So. 2d 413 (Fla. 1996).

H. The post-conviction proceedings

On September 1, 1997, through CCRC-South, Archer filed a

“shell” Motion to Vacate Judgment of Conviction and Sentence

with Special Request for Leave to Amend. (PCR II 151-234).

28

Following litigation over public records, Archer filed a Second

Amended Motion on February 22, 2000.16 (PCR V 571-654). In this

Second Amended Motion, Archer raised the following 21 claims for

relief:

I. Giglio/Brady violations

16 There does not appear in the record a First Amended

Motion.

A. The State knowingly presented false testimony in

the guilt phase of Archer’s original trial,

namely, testimony by Patrick Bonifay that Archer

threatened to harm Bonifay’s mother and

girlfriend if Bonifay did not kill Archer’s

former manager at Trout Auto Parts Store;

B. The State disputed Bonifay’s claim in his own

trial that he committed the murder because Archer

threatened him, but then argued in Archer’s

subsequent trial that Bonifay committed the

robbery/murder solely because of Archer’s threat;

C. The State withheld material, exculpatory

information from Brian Lang, Archer’s original

trial counsel, namely,

29

1. that Bonifay had committed without Archer

six months before the Trout robbery/murder

an armed burglary in Mississippi in which

the victim was stabbed;

2. that Bonifay and others involved in the

Trout robbery/murder had burglarized All Pro

Sound without Archer a month before the

Trout robbery/murder;

3. that David Bland, who testified against

Archer, had been granted immunity by the

State for his involvement in the All Pro

Sound case in exchange for his testimony

against Archer in the Trout case;

4. that Bonifay was the ringleader of the All

Pro Sound burglary, having obtained a key to

the store from his stepfather, who worked

there; and

5. that Clifford Barth testified in Bonifay’s

trial (which occurred prior to Archer’s

trial) that Bonifay had asked Barth to

testify falsely that Bonifay was intoxicated

at the time of the crime and that Archer

30

threatened Bonifay into committing the Trout

robbery/murder;

6. that the intended victim, Daniel Wells, had

initially been a suspect in the Trout case,

contrary to a police report in the Trout

case, as evidenced by the police’s

administration of a polygraph to Wells;

7. that Wells made statements during the

polygraph that Archer’s trial counsel could

have used to impeach his testimony at trial;

8. that Daniel Webber, who testified against

Archer, had two pending charges of violation

of probation at the time he testified

against Archer;

9. that Wells, the intended target of the

alleged contract killing, had told police

that he had previously seen the individual

who had approached him the night before the

robbery/murder at Trout;

II. There was no claim 2 in the motion;

III. Brian Lang, Archer’s original trial counsel,

rendered constitutionally ineffective

31

assistance of counsel in the guilt phase of

Archer’s trial by

A. failing to impeach Daniel Webber with

his felony conviction and pending VOP

charges;

B. by failing to discover and use as

impeachment Bonifay’s, Wynn’s, and

Barth’s involvement in the All Pro

Sound burglary case, which was pending

at the time of Archer’s trial;

C. by failing to elicit from Barth that

Bonifay asked him to lie regarding

Archer’s involvement in the Trout case;

D. by failing to depose Bonifay and Barth

before their testimony in Archer’s

trial;

IV. Brian Lang rendered constitutionally

ineffective assistance of counsel in the

guilt phase of Archer’s trial by failing to

seek a change of venue in the face of

massive pretrial publicity;

V. Newly discovered evidence established

Archer’s innocence:

32

A. while Bonifay and Barth were housed

together at the juvenile detention

center and later at the county jail,

Bonifay suggested that they tell police

that Archer hired them to commit the

Trout robbery/murder;

B. Bonifay has told another death row

inmate

1. that he and David Kelly Bland had

planned the robbery of the Trout

Auto Parts store, had cased the

store prior to the robbery, and

had obtained the gun, all without

Archer’s involvement, but claimed

that they obtained the gun from

Archer;

2. that he (Bonifay) was angry at

Archer because Archer had refused

to help him buy a quantity of

marijuana, which Bonifay intended

to sell and use the proceeds to

buy Archer’s truck;

33

3. that Bonifay shot the victim

because he (Coker) had seen

Bonifay’s face and because

Clifford Barth had spoken

Bonifay’s name in the victim’s

presence;

4. that Bonifay had concocted his

testimony about Archer having a

briefcase containing $500,000,

based on a movie he had seen;

5. that Bonifay had lied at his own

trial about being threatened by

Archer because he was confused on

cross-examination and felt he

needed to explain his involvement;

C. Fordham would have testified that

1. on the night of the Trout robbery

Bonifay told him that he needed to

go to Trout to make a drug deal

and to collect money;

2. Bonifay told him that he killed

the clerk to “see what it was

like”;

34

3. he and Bonifay never discussed

Archer’s involvement;

4. Bonifay told him that he (Bonifay)

was angry at Archer because Archer

refused to help him buy a quantity

of marijuana for Bonifay to sell;

D. The prosecutor encouraged Fordham to

present false testimony at Archer’s

trial about Archer’s involvement in the

robbery/murder in exchange for a plea

deal;

VI. Brian Lang rendered constitutionally

ineffective assistance of counsel in the

guilt phase of Archer’s trial by

A. failing to strike for cause Juror

Hughes;

B. failing to strike peremptorily Juror

Hughes;

VII. Spiro Kypreos, Archer’s resentencing

counsel, rendered constitutionally

ineffective assistance of counsel in the

penalty phase of Archer’s trial by failing

35

to discover and present mitigating evidence,

particularly mental health mitigation;

VIII. Archer is innocent of first-degree murder;

IX. Archer is innocent of the death penalty;

X. The penalty phase jury instructions shifted

the burden to the defense to prove that

death was not an appropriate penalty;

XI. The trial court improperly instructed the

jury on the standard by which to judge

expert testimony;

XII. Archer’s jury was not given adequate

guidance as to what was necessary to

establish the presence of an aggravator;

XIII. Archer’s death sentence was predicated upon

an automatic aggravator, namely, that the

murder was committed during a robbery;

XIV. Archer’s penalty phase jury was given

misleading instructions that diminished its

role in rendering its advisory verdict;

XV. Archer was denied the right in post-

conviction to interview the jurors in his

case to determine if constitutional error

was present;

36

XVI. Archer’s sentencing jury was given an

unconstitutionally vague instruction on the

cold, calculated, and premeditated

aggravating factor;

XVII. Florida’s capital sentencing statute is

unconstitutional on its face and as applied;

XVIII. Cumulative errors in Archer’s original trial

and resentencing deprived him of a

fundamentally fair trial;

XIX. Archer is insane and cannot be executed;

XX. Archer was denied a fair trial because the

State was allowed to admit gruesome and

prejudicial photographs;

XXI. Amendments to the Florida death penalty

statute that allow a choice between

electrocution and lethal injection is being

applied to Archer in an ex post facto

manner.

(PCR V 571-674).

In its response, the State conceded that an evidentiary

hearing was warranted on Claims I, III, IV, V, VI, and VII. All

other claims, it alleged, were procedurally barred or without

merit. (PCR V 656-670). Following the Huff hearing, collateral

37

counsel moved to amend Claim XV with excerpts from the record to

support his claim. (PCR V 727-30). On May 15, 2001, the trial

court granted an evidentiary hearing on Claims I, III, IV, V,

VI, and VII. It found Claims IX, X, XI, XII, XIII, XIV, XVI,

XVII, and XX procedurally barred; Claim XIX not ripe for review;

and Claim XXI moot. It granted Archer’s motion to supplement

Claim XV and included it in the claims to be considered at the

evidentiary hearing. Finally, it took Claims VIII and XVIII,

the cumulative error arguments, under advisement pending the

outcome of the evidentiary hearing. (PCR V 741-42).

On January 2, 2002, collateral counsel filed an addendum to

Claim V (newly discovered evidence), alleging that Bonifay had

recently informed the trial court at his own post-conviction

Huff hearing that he had lied about Archer’s involvement in the

robbery/murder, that Archer never asked him or threatened him to

kill Coker, and that there was never a briefcase full of money.

(PCR V 743-50).

On January 8, 2002, Archer’s evidentiary hearing commenced.

By agreement of the parties, the expert witnesses to support

Claim VII were called first. Dr. Earnest Bordini, a forensic

psychologist and neuropsychologist, interviewed Archer and

performed mental health testing at collateral counsel’s request.

(PCR VI 772-82). Among other things, Dr. Bordini testified

38

that Archer failed the third grade and lost interest in school.

(PCR VI 787-88). He later dropped out of school in the eighth

grade when he was 16 years old and was thereafter employed at a

variety of jobs, including one at Trout Auto Parts. (PCR VI

790-92). Despite his employment history, Archer described

himself as lazy and was living with a girlfriend who supported

him at the time of the Trout robbery/murder. (PCR VI 792-93).

As the likely result of two serious head injuries, Archer had

suffered damage to his right frontal lobe, which resulted in

verbal memory deficits, a short attention span, and difficultly

sustaining motivation. (PCR VI 795-822). Dr. Bordini described

Archer as passive and nonconfrontational, and as someone who did

not fit the profile of one who would commit occupational

violence, as was alleged in this case. (PCR VI 836-39).

Dr. James Larson, a forensic psychologist, was called by the

State. Dr. Larson had evaluated Archer in 1993 in preparation

for his resentencing. Because of Archer’s documented head

injuries and test scores, Larson suggested that resentencing

counsel engage a neuropsychologist, which he did. Dr. Karen

Hagerott, a forensic neuropsychologist, who also testified for

the State at the evidentiary hearing, evaluated Archer and, in

consultation with Larson, informed resentencing counsel that

they found no evidence to support either of the two statutory

39

mental health mitigating factors. As a result, they were not

called to testify at Archer’s resentencing proceeding. (PCR VI

853-886, 896-913).

Collateral counsel then called Spiro Kypreos, Archer’s

resentencing counsel. Mr. Kypreos had read all of the previous

trial transcripts of all the co-defendants and found the State’s

theories inconsistent regarding the relative culpabilities of

Archer and Bonifay. (PCR VI 919). In Bonifay’s trial, the

State argued that Bonifay acted independently of Archer, but in

Archer’s trial, the State argued that Bonifay was afraid of

Archer because Archer had threatened him. (PCR VI 919-21).

Mr. Kypreos also testified that he was aware of Bonifay’s

Mississippi case, but chose not to use it because he did not

want the jury to think that Archer was hanging out with “thugs”

who were capable of hurting their victims. (PCR VI 938, 945).

However, he was not aware of the All Pro Sound case. He would

have used Wynn’s involvement in it to show that Wynn was

Bonifay’s partner in crime and had a reason to perpetuate

Bonifay’s lie regarding the reason for the Trout robbery/murder.

(PCR VI 947-48). Although evidence of the All Pro Sound case

would have impeached Barth, who was the best witness to impeach

Bonifay, Kypreos still would have used it to further impeach

40

Bonifay, who was the only witness to support the State’s

contract-killing theory. (PCR VI 948-50).

Further, Kypreos testified that he was not aware that Daniel

Webber had pending charges at the time of trial, but he doubted

he would have impeached Webber with his criminal conviction

because Webber’s testimony was not that harmful to Archer’s

case. (PCR VI 944). Further, while he was not aware that the

police had administered a polygraph to the intended victim,

Daniel Wells, he did not know how he would have used the

information had he known about it. (PCR VI 939-41). Finally,

Kypreos testified that he was aware of, and had used, evidence

that Bonifay had asked Barth to lie and say that Bonifay was

drunk or high at the time of the crime and that Archer had put

them up to the robbery. (PCR VI 942).

Archer’s next witness was Patrick Bonifay.17 Against his

attorney’s advice, and after extensive warnings by the trial

court, Bonifay testified that he had lied during his testimony

against Archer regarding Archer’s threat to harm his mother and

girlfriend if he did not kill the clerk at Trout. (PC-A VII

17 During his incarceration, Bonifay had converted to the

Muslim faith and had changed his name to Nabil Taqqi Ya’qub Musaaleh. For the sake of clarity, his given name will be used herein.

41

969-79; VIII 1175-85, 1191). He fabricated the threat to shift

attention from himself to someone else:

I had a detective sitting there talking to me about the electric chair. I was 17 years old, I was high, I didn’t want to die, and it was hard for me to believe that someone could really understand what had really happened. So the first thing that came to my mind was to shift the blame onto someone else.

(PC-A VIII 1191-93). As for the briefcase full of money,

Bonifay made that up, too: “The story that I came up with was a

murder for hire and, of course, if there’s a murder for hire,

there has to be a payment.” (PC-A VIII 1192).

Cliff Barth then testified that while he and Bonifay were

incarcerated together at the Juvenile Detention Center after

their arrests, Bonifay asked Barth to say that Archer was going

to pay Bonifay to kill the clerk. Barth refused, “[b]ecause it

was false.” (PC-A VII 981-82, 990).

Brian Lang was Archer’s next witness relevant to his motion.

Lang was Archer’s original trial attorney. Lang testified that

he was not aware prior to trial of the All Pro Sound case. (PC-

A VII 1030). Had he been aware of it, however, he probably

would have used it. (PC-A VII 1031, 1038, 1055). As for the

Mississippi case, Archer mentioned it during the State’s cross-

examination of him, but Lang could not remember whether he knew

42

anything about it. Again, had he known about it, he may have

used it as impeachment evidence. (PC-A VII 1037, 1054-55).

Collateral counsel next called Archer’s and Bonifay’s

prosecutor, Michael Patterson, as a witness.18 Mr. Patterson

testified that his theory regarding Archer’s involvement in the

crimes was that Archer “assisted.” (PC-A VII 1074). However,

he wanted to prove the CCP aggravating factor. (PC-A VII 1075).

Just prior to Archer’s trial, Bonifay’s attorney approached

Patterson and indicated that Bonifay wanted to testify against

Archer. With the understanding that the State would not

negotiate Bonifay’s sentence, Patterson decided to put Bonifay

on the stand. (PC-A VII 1076). He did not, however, have any

substantive discussion with Bonifay prior to calling him as a

witness. (PC-A VII 1077, 1116, 1121).

When Bonifay testified regarding the briefcase full of money

and the threat, Patterson did not believe him and did not think

the jury believed him either. (PC-A VII 1079-80, 1106, 1121-

22). Regarding the All Pro Sound case, Patterson testified that

he could not recall whether he knew about Bonifay’s, Barth’s,

and Wynn’s involvement and, if so, whether he provided such

information to Archer’s trial attorney. (PCR-A VII 1103-05,

18 A different attorney prosecuted Bonifay’s and Archer’s

resentencing proceedings.

43

1108, 1112). Nor could he recall whether he investigated the

Mississippi case, but he conceded that he may have done so while

investigating Bonifay’s prior criminal history. (PCR-A VII

1092, 1101). On cross-examination by the State, he admitted, in

fact, that he knew about Bonifay’s Mississippi arrest, but was

having difficulty obtaining any paperwork relating to it. (PC-A

VII 1113). Patterson also conceded that he had used his

knowledge of the case to impeach Bonifay in his penalty phase,

which occurred the day after Archer’s trial. (PC-A VII 1092-

93).

Following the evidentiary hearing and memoranda by counsel,

the trial court denied Claims I, III-VIII, XV, and XVIII. (PC-A

X 1503-34). Appellant is appealing only Claims I, V, and VIII.

SUMMARY OF ARGUMENT

Robin Archer is factually innocent of first-degree murder,

armed robbery, and grand theft. He was convicted as a principal

based upon the admittedly false testimony of the main

perpetrator, Patrick Bonifay, a juvenile who is no longer

eligible for the death penalty. According to Bonifay’s

testimony at the evidentiary hearing, Archer never offered him

money to kill anyone, never asked him to kill the clerk at Trout

Auto Parts, and never threatened to harm Bonifay’s family if he

44

did not. Bonifay created the murder-for-hire scenario, naming

Archer as the ringleader, in order to shift responsibility to

someone else. Given the context in which Bonifay recanted, the

inconsistencies in his statements before and during trial, and

the independent corroborating evidence to support his

recantation, the trial court erred in finding Bonifay’s recanted

testimony not credible. Not only does competent, substantial

evidence exist in the record to establish Bonifay’s credibility,

but his testimony has changed to such an extent as to render

probable a different verdict on retrial. Therefore, a new trial

should be granted on Archer’s newly discovered evidence claim.

A new trial is also warranted based upon the prosecutor’s

admission that he believed Bonifay was lying when he testified

that Archer offered him half a million dollars to kill the clerk

at Trout and later threatened to harm Bonifay’s family if he did

not complete the job. The prosecutor candidly made no attempt

to discover what Bonifay’s testimony would be prior to calling

him as a witness, and then allowed him to testify falsely

without correcting the false nature of the testimony.

Immediately thereafter, he argued in Bonifay’s penalty phase

that Bonifay was lying about the extent of Archer’s involvement,

in order to refute the “substantial domination” mitigating

factor. Since there was no other credible evidence to establish

45

Archer as a principal, there is a reasonable likelihood that

Bonifay’s false testimony could have affected the judgment of

the jury. Therefore, Archer’s conviction must be set aside

based upon a Giglio violation.

Finally, impeaching the credibility of Bonifay, Barth, and

Wynn at trial was a main defense objective. The State, however,

withheld critical impeachment evidence that could reasonably be

taken to put the whole case in such a different light as to

undermine confidence in the verdict. At the time these

witnesses testified, Barth had pled guilty in the All Pro Sound

case, and Wynn had had his case deferred by agreement with the

prosecutor. Besides impeaching Barth and Wynn, evidence of the

burglary, as well as evidence of another burglary and aggravated

battery Bonifay had committed in Mississippi, would have shown

that Bonifay was capable of committing crimes without Archer.

As a result, it would have refuted Bonifay’s claim that he was

merely acting under Archer’s domination and control when he

robbed and killed Billy Coker. When considered cumulatively, as

the law requires, the State’s Brady violation warrants the

reversal of Archer’s convictions and a new trial.

ARGUMENT

ISSUE I

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NEWLY DISCOVERED EVIDENCE BASED ON

THE MATERIAL RECANTATION OF THE

STATE’S KEY WITNESS ESTABLISHES

ROBIN ARCHER’S FACTUAL INNOCENCE

IN THE ROBBERY AND MURDER OF BILLY

COKER.

Patrick Bonifay, along with Clifford Barth and Eddie

Fordham, indisputably robbed and murdered Billy Coker at Trout

Auto Parts on January 26, 1991. Bonifay and Barth were the

active perpetrators, with Bonifay the actual shooter, and

Fordham was the getaway driver. Robin Archer was never present

at the scene and has never been alleged to have been at the

scene. Because of his absence, the State was forced to rely

upon the legal concept of principals to prove Archer’s

culpability. As a result, Patrick Bonifay became the State’s

key witness. He was the only witness who could allege that

Archer (1) “[k]new what was going to happen,” (2)“[i]ntended to

participate actively or by sharing in an expected benefit,” and

(3) “[a]ctually did something by which he intended to help

commit the crime[s].” Fla. Jury Instr. in Crim. Cases 3.01

(1981).

A. Bonifay’s trial testimony against Archer

47

At Archer’s trial, Bonifay revealed for the first time that

Archer showed him a “briefcase full of money” on Thursday night

and asked him to kill the clerk who would be working at Trout

Auto Parts on Friday night. According to Bonifay, Archer wanted

the clerk killed because “[t]he man got him fired and messed up

something, and [Archer] had hated him ever since.”19 (TR-A I

129). Bonifay then testified that Archer told him to make it

look like a robbery, instead of a murder, and that he gave

Bonifay inside information on how to rob the store. (TR-A I

126-28).

According to Bonifay, he then recruited Cliff Barth and

Eddie Fordham the following day to help him commit the

robbery/murder. However, when Bonifay walked up to the service

window at Trout to initiate the robbery, he “couldn’t do it,” so

19 Eleven months had passed since Archer had been fired from

Trout for poor work performance. (TR-A I 174; II 263-64). Although Dan Wells, the alleged intended victim, testified that he “felt threatened” by Archer and believed that Archer suspected he had something to do with Archer being fired, several witnesses testified that they knew of no hard feelings between Archer and Wells. (TR-A I 177; II 311-12, 346). At the evidentiary hearing, Dr. Earnest Bordini, a forensic neuropsychologist with experience in workplace violence, testified that Archer was a passive, non-confrontational person who did not fit the profile of a person likely to retaliate with workplace violence. (PC-A VI 836-39).

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they left.20 The next day, Archer was at Bonifay’s house when

the following conversation allegedly took place:

20 Bonifay denied that the reason he “couldn’t do it” was

because the clerk heard him cock his gun at the service window, but the clerk testified that he heard a gun cock and quickly closed the window. (TR-A I 152, 180-81). George Wynn and Cliff Barth both testified that Bonifay told them he cocked the gun and scared the clerk. (TR-A I 197, 205).

A. [BY BONIFAY] [Archer] came in. I was in the bedroom and he came in and was yelling at me and all mad telling me you don’t back out on something like that, screaming at me. And I told him I wasn’t going to kill somebody for money. And he said oh, you’re not. And I said no, I’m not. He said you like your mom and Rae. And I said what’s that supposed to mean. And he said you take it like you want to and walked out.

Q. [BY THE PROSECUTOR] How did you take

it?

A. He would hurt my mother and my girlfriend.

Q. If what?

A. If I did not do what he told me.

Q. So what happened that night,

Saturday night?

A. I called my friends and told them

that, all that stuff, and I didn’t tell them

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about the threat. I just told them that we

had to go do it.

(TR-A I 130) (emphasis added).

Later that night, the same three--Bonifay, Barth, and

Fordham--went back to the Trout store. After Bonifay wounded

the clerk, gained entry into the store, and stole the day’s

proceeds from the night drop box, he claimed that he killed the

clerk not for the money Archer had promised him, nor because the

clerk had seen his face and knew his name, but because of

Archer’s threat:

I jumped down from the counter and, you know, I wanted to go because then I could just tell Robin that I had shot the man and he just - you know, he didn’t die, and then everything would be okay, you know, and he would say well, you tried, and then he wouldn’t hurt nobody.

And then Cliff [Barth], he said, Patrick, kill him. And I don’t know why he called out my name. He just - he said Patrick, kill him, and then I like freaked out because I knew he knew my name now and I knew he had seen me. So Cliff came around the back of me, and I put the gun to his head and turned the other way and I pulled the trigger twice and turned around and ran.

* * * *

Q. [BY DEFENSE COUNSEL] But you’re

telling these ladies and gentlemen of the jury that you killed him because you’re afraid of Robin Archer, is that right?

A. I told you that the reason I did it

was because everything was messed up, and he

50

knew my name, and if I didn’t do it, he might live and know who I was, and Robbie would come back. If I did do it, Robbie would leave me alone, and everything would be okay.

Q. Well, then what you’re saying, sir,

is that you killed him because you’re afraid of Robin Archer, is that what you’re saying?

A. Yes, sir.

* * * *

Q. So you weren’t planning on killing

the man after all, were you?

A. (Indicates in the negative.)

* * * *

Q. You weren’t going to kill him, were you?

A. Didn’t want to.

Q. But that was the whole purpose of

going in there, wasn’t it, just to kill the man for Robin Archer, because Robin Archer told you to because he had a suitcase full of money?

A. The first night that was the

reason.

Q. You didn’t think you were going to get that suitcase full of money, the half million dollars, unless you killed him, were you?

A. I didn’t think I was going to get

it if I did it Saturday night.

Q. So you were going to get a half million dollars if you did it Friday night,

51

but you weren’t going to get it if you did it Saturday.

A. Right.

Q. Because it was a different man?

A. No.

Q. Then why weren’t you going to get a

half million dollars the second night?

A. Because I backed out the first night, and he was pissed off at me and he said either you do it or you lose your girlfriend and your mom.

* * * *

Q. And you’re telling the ladies and

gentlemen of the jury that he threatened harm to your mother and your girlfriend if you didn’t go back and kill that man at the store?

A. Right.

Q. And you did it?

A. Right.

Q. Because of what he said?

A. Right.

(TR-A I 132-33, 148-49, 153-54, 154-55, 156) (emphasis added).

B. Archer’s rebuttal at trial

Testifying on his own behalf, Archer specifically denied

that he had offered Bonifay money or that he had asked Bonifay

to kill a clerk at Trout. He also denied helping Bonifay plan

the robbery/murder, and he denied threatening the lives of

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Bonifay’s mother and girlfriend if Bonifay did not commit the

crimes. (TR-A II 276-78, 290).

C. The lack of corroborating evidence at trial

Patrick Bonifay was the only witness who supported the

State’s theory that Archer was guilty as a principal. George

Wynn testified that Bonifay asked him on Friday night to be the

getaway driver. Although Bonifay told him that Archer wanted

him to kill the clerk, the details of the plan to rob the store,

and Archer’s alleged involvement in the plan, came solely from

Bonifay. Wynn had never spoken to Archer. (TR-A I 192-93).

Bonifay also recruited Cliff Barth on Friday night to rob

Trout. According to Barth, Bonifay told him that Archer used to

work at Trout and had provided information about how to rob the

store, but, again, all of the allegations of Archer’s

involvement came from Bonifay. (TR-A II 202-03). Critically,

Bonifay never told Barth that the reason they were going to the

store was to kill the clerk. (TR-A II 211). Nor did Bonifay

tell him that Archer offered to pay Bonifay to rob the store or

that Archer threatened to harm Bonifay’s family if he did not do

so.

The only testimony from Barth that circumstantially linked

Archer to the crime was his testimony that he and Bonifay and

Fordham went to where Archer was staying on Friday night. When

53

they arrived, Bonifay got out of the car and spoke to Archer in

the yard. At one point, Archer leaned inside his truck. When

Bonifay returned to the car, he had a gun. (TR-A II 204).

However, Barth did not see Archer hand Bonifay the gun (TR-A II

208), nor was Barth able to identify the murder weapon, which

the police recovered from Kelly Bland (TR-A II 219), as the gun

he saw Bonifay return with. (TR-A II 235-36).

Finally, Daniel Webber, with whom Archer was staying at the

time of the robbery/murder, testified that he came home Sunday

night and found Archer asleep on the couch. Webber caught the

tail end of a news report regarding the robbery/murder on the

television, at which point Archer woke up and asked Webber what

was said. Webber told him. Archer then remarked to Webber that

he thought he knew who had committed the crime, that he had told

them “how to do it.” Webber testified repeatedly that Archer

did not say he told the unidentified perpetrators to do it;

rather, Archer said he told them how to do it. Archer then

described to Webber how one might rob the store, which included

shooting the clerk.21 (TR-A II 212-14, 215-16, 255-60).

D. Bonifay’s recantation

21 Webber later told Richard Archer, who was Webber’s

roommate and Robin’s cousin, that Robin had told him he knew who was involved in the robbery/murder at Trout because “he told them how they could get in there, but he didn’t say he had

54

On February 26, 2001, during the Huff hearing in Bonifay’s

own pending post-conviction case, Bonifay spontaneously asked to

address the court and, against his attorney’s advice, made the

following statement exonerating Archer in the robbery/murder:22

This month, Your Honor, has been ten years of this going on. And the truth is, I’m tired, and there was no contract, there was no suitcase full of money, there was no hit. There was a robbery. And I’m going to have to stand before [Allah] on judgment day and answer for one man’s blood on my hands. I ain’t going to answer for two. I’m not acknowledging having nothing to do with the robbery. There was no contract. There was no hit. That’s just something I made up trying to get away from getting in trouble, putting it on somebody else.

I was a kid. I was [high]. They

started talking about the chair. Let me get this up off me. I’m standing before [Allah] with one man’s blood on my hands, not two.

anything to do with it.” (TR-A II 356).

22 Judge Lacey Collier had presided over Bonifay’s and Archer’s original trials. Following the two defendants’ successful appeals, the Honorable Michael Jones presided over their re-sentencings and later re-sentenced both Bonifay and Archer to death. As a result, Judge Jones was presiding over both Bonifay’s and Archer’s pending post-conviction proceedings when Bonifay made this statement.

55

I can’t do it. I’ve been doing it for ten years. I’m tired. That’s it.

(PC-A V 745-46).

When the State informed Archer’s collateral counsel of

Bonifay’s statements to the court, counsel moved to supplement

Archer’s post-conviction motion with Bonifay’s recantation.

(PC-A V 743-49). At Archer’s evidentiary hearing in January

2002, Bonifay testified on Archer’s behalf and repeated his

prior recantation:

Q. [BY DEFENSE COUNSEL] Do you recall making a statement . . . to law enforcement?

A. [BY BONIFAY] Yes, I do.

Q. Did you indicate to law

enforcement, either on the record or off the record, that you were scared that something could happen to your girlfriend or to your mom?

A. Yes.

Q. Was that a true statement?

A. No. It was a fabrication.

Q. And in that statement, did you

indicate that you were afraid that Mr. Archer was gonna do something to them?

A. Yes.

Q. Why did you make up that

fabrication?

A. In an attempt by me to -- to shove responsibility, to get pressure off of me onto someone else. I understood -- I understood, at that point, what I was facing

56

because I had a detective sitting there talking to me about the electric chair. I was 17 years old, I was high, I didn’t want to die, and it was hard for me to believe that someone could really understand what had really happened. So the first thing that came to my mind was to shift the blame onto someone else.

Q. You told the detectives that you

were offered a lot of money by Mr. Archer to do this, right?

A. Correct.

Q. Was that a true statement?

A. No, it was not.

Q. Why did you come up with that

story?

A. The story that I came up with was a murder for hire and, of course, if there’s a murder for hire, there has to be a payment.

Q. Did you tell the police or did you

tell the jury at some time that Robin was angry because you didn’t pull off the robbery?

A. I believe at his trial I testified

to that.

Q. Was that true?

A. No, it was not.

Q. Why did you say that?

A. It was in line with the lie that I

was making up.

(PC-A VIII 1191-93).

57

E. The trial court erroneously concluded that Bonifay’s recantation was not newly discovered evidence

For a court to set aside a conviction based upon newly

discovered evidence, two requirements must be met. First, in

order for the evidence to be considered newly discovered, it

“must have been unknown by the trial court, by the party, or by

counsel at the time of trial, and it must appear that defendant

or his counsel could not have known [of it] by the use of

diligence.” Torres-Arboleda v. Dugger, 636 So. 2d 1321, 1324-25

(Fla. 1994). In denying this claim, Judge Jones concluded that

Bonifay’s recanted testimony did not qualify as newly discovered

evidence:

First of all, the underlying facts now alleged by Bonifay were actually known to the Defendant at the time of his original trial. In fact, the defendant testified at his trial in 1991 that he did not offer to pay Bonifay. He claimed that he did not have any issues with Dan Wells [the alleged intended victim]. And, Defendant testified that he did not threaten Bonifay or his mother or girlfriend. As the facts underlying the alleged newly discovered evidence were actually known to the Defendant or counsel at the time of trial, the evidence does not qualify as newly discovered.

(PC-A X 1524-25) (citations and footnote omitted).

Neither the record nor logic supports the trial court’s

conclusion. It is not the underlying facts, per se, that

constitute newly discovered evidence. Rather, it is the

58

inherent falsity of Bonifay’s original testimony. Of course

Archer knew Bonifay’s trial testimony was false, but the court

did not, and the jury did not. Thus, it is Bonifay’s admission

that his trial testimony was false that was unknown at the time

of trial and could not have been discovered with due diligence.

As a result, the trial court’s finding in this regard was

erroneous. See Lightbourne v. State, 841 So. 2d 431, 439 (Fla.

2003) (reaffirming that recanted testimony can be considered

newly discovered evidence); Robinson v. State, 707 So. 2d 688,

691 n.4 (Fla. 1998) (“We note that the trial court properly held

an evidentiary hearing on Fields’ recanted testimony because his

affidavit qualifies as newly discovered evidence.”).

F. The record does not support the trial court’s finding that Bonifay’s recanted testimony was not credible

The second requirement for establishing a newly discovered

evidence claim is that the evidence must be of such a nature

that it would “probably produce an acquittal on retrial.” Jones

v. State, 709 So. 2d 512, 521 (Fla. 1998). Before reaching such

a conclusion, the trial court must “‘consider all newly

discovered evidence which would be admissible’” at trial and

then evaluate the “‘weight of both the newly discovered evidence

and the evidence which was introduced at the trial.’” Id.

(quoting Jones v. State, 591 So. 2d 91, 915 (1991)). Thus, a

59

cumulative analysis of newly discovered evidence is required.

Roberts v. State, 840 So. 2d 962 (Fla. 2002).

In performing this analysis, the trial court should first

consider whether the evidence would have been admissible at

trial. Jones, 709 So. 2d at 521-22 (citations omitted). If it

would have been admissible, then an evaluation of its weight

would depend upon whether the evidence affects the merits of the

case or is merely impeachment evidence, and whether the evidence

is cumulative to other evidence in the case. Id. Finally, the

trial court should consider “the materiality and relevance of

the evidence and any inconsistencies in the newly discovered

evidence.” Id. When the newly discovered evidence includes

testimony of witnesses who witnessed events at the time of the

crime, the trial court may consider “both the length of the

delay and the reason the witness failed to come forward sooner.”

Id. “Only when it appears that, on a new trial, the witness’s

testimony will change to such an extent as to render probable a

different verdict will a new trial be granted.” Armstrong v.

State, 642 So. 2d 730, 735 (Fla. 1994).

In rejecting Archer’s newly discovered evidence claim, the

trial court concluded that Bonifay’s recanted testimony was “not

credible.” (PC-A X 1524, 1525). To support its finding, the

trial court relied upon Florida Jury Instruction in Criminal

60

Cases 2.04 to “provide a framework for [its] credibility

analysis”:

Did Bonifay seem to have an accurate memory? His memory seemed more accurate in 1991. Was Bonifay honest and straightforward in answering the attorney’s [sic] questions? He seemed to be hedging often during his testimony, but more so in his recantation. Did Bonifay have an interest in how the case should be decided? If this was not a planned murder but simply a robbery gone bad, then Bonifay is probably not eligible for the death penalty, so his recantation could potentially affect the imposition of the death penalty against Bonifay. Did Bonifay at some other time make a statement that is inconsistent with the recantation? Bonifay’s first three statements about this murder consistently pointed to Defendant as the mastermind, contrary to his recantation. Has Bonifay been convicted of a crime? Bonifay is on death row.

(PC-A X 1525).

This Court has repeatedly stated that it “will not

substitute its judgment for that of the trial court on issues of

credibility” so long as the decision is supported by competent,

substantial evidence. Johnson v. State, 769 So. 2d 990, 1000

(Fla. 2000). Archer submits that the record doe